Summary

Facts

After an operation to separate conjoined twins, the parents of Gracie Attard applied to vary a Family Division injunction which restrained any publication likely to identify either of the twins. They had negotiated a contract with The News of the World and The Mail on Sunday to tell their exclusive story together with photographs of Gracie in return for a large payment. Bennett J allowed the application and varied the order so as to permit publication of the exclusive story in the chosen newspapers. On the day of the application, the Manchester Evening News published a photograph of Gracie with her parents on the steps of a Manchester Hospital. The photograph had been taken from a public highway with a long lens. The Mirror newspaper applied to vary further the order so as to allow it to publish photographs of Gracie.

Issue

(1) Whether the injunction should be further varied; (2) Whether the publication of the photograph of Gracie in the Manchester Evening news meant that the original order could no longer stand; (3) Whether Gracie’s privacy could be bought and sold; (4) Whether the Family Division should use its jurisdiction to preserve the commercial value of such an exclusive deal

Held

(1) The application further to vary the injunction was refused; (2) the publc domain argument failed, it was only one of the factors to be considered under s.12 and the photograph on the steps of the hospital had arguably been obtained in breach of the Press Complaints Commission Code to which the Court had to have regard under the section; (3) It was perfectly permissible to sell Gracie’s privacy; (4) the jurisdiction was being invoked to promote the best interests of Gracie. She stood to suffer financially if the exclusivity of the deal could not be preserved.

Comment

The decision in this case is very unusual. Not only was the Court using its powers to secure an exclusive deal with a media organisation, it also restrained further publicity of a photograph which had clearly come into the public domain. The justification for doing so – acting in Gracie’s best interests – is hardly a convincing basis to justify such a significant restriction in the applicants’ rights of freedom of expression. Interestingly, the Attards’ complaint to the PCC regarding the publication of the photograph by the MEN was rejected. The PCC – in an overt snub to the Court – adjudicated: “Privacy is not a commodity which can be sold on one person’s terms.” The injunction was finally varied so as to allow The Mirror to publish photographs of Gracie on 23 October 2001 (O’Connell J).

More from 5RB

2018 Chambers and Partners on 5RB2018 Chambers and Partners on 5RB

5RB is the pre-eminent set in the area for handling defamation, privacy, contempt and data protection matters. Interviewees praise the set for having great depth and quality of counsel, and note that it boasts many of the top barristers in the field. Get the lowdown here.

New 22nd Edition of Clerk & Lindsell on Torts, published by Sweet & Maxwell. Further info here.

Golden Eye 'Pay or Else' LetterGolden Eye 'Pay or Else' Letter

In this article, first published onLexis®PSL IP & IT , 5RB‘s Christina Michalos looks at the issues surrounding speculative/volume invoicing (“pay or else”) for copyright infringement in relation to downloading from file sharing websites. Read the full articlehere.